Fundamental Legal Problems Of Surrogate Motherhood Global Perspective

The observation that mater semper certa est remains accurate under most legal systems in the world. Maternity is defined as the personal status (filiation) of a woman who gave birth to a child. It is typically complemented by the fatherhood of the man from whom the child biologically originates (often quem nuptiae demonstrant). However, in some states, a kind of competitive way of acquiring the legal status of mother and father (or “homosexual parents A and B”) has been introduced via concluding a contract with a surrogate mother. Usually with a woman coming from poorer societies and with the assistance of professional intermediaries and organizers. The postulates to change substantive family law, or at least to recognize the effects of foreign law and procedures (a kind of “procreative tourism”), appear nowadays also in states generally prohibiting surrogate motherhood. The issues discussed in this volume concern both national law and international court cases. Recent examples include the opinion of the European Court of Human Rights of 10 April 2019 initiated by the French Cour de cassation, the judgement of the German Bundesgerichtshofof 20 March 2019, and dilemmas of Polish administrative courts. Focusing on the international perspective, the present volume as well as an accompanying book in Polish are the results of the international cooperation of over 30 experts from both member states and observer states of the Council of Europe. The monograph is structured “from the general to the detail” and includes a comprehensive view as well: from the issues of philosophy and sociology of law, to human rights standards of national constitutions and international agreements, to principles of ordre public of forum and their protection with measures of private, public, and penal law. This allows readers, including legislators and judges, the better understanding of the fundamental legal problems that surrogate motherhood brings, both in states where law creates them in a narrower or wider extent, and in other countries of the world, to which these problems can be imported with the movement of people and with de lege lata and de lege ferenda postulates.

This multi-disciplinary book explores legal, ethical, social, psychological and practical aspects of surrogate motherhood in Britain and abroad.

During the past few years, reproductive technology and surrogacy have emerged in a number of European countries as issues of debate. There has been a steady increase in the use of reproductive technology in the Nordic countries, as well as an increase in the use of cross-border medical treatment in order to achieve pregnancy. At the same time, a number of ethical issues have been raised concerning the rights of the participants, including the children. In the fall of 2013, the Nordic Committee on Bioethics organised a conference in Reykjavik that focused on the current situation in the Nordic countries and on the global aspects of reproductive technology and surrogacy, including the market that is emerging in this field. This conference summary highlights the main ethical issues facing researchers, policymakers and practitioners who deal with these issues.

"... glimpses of intriguing changes in social arrangements and cultural understandings in relation to surrogacy. Disturbing motherhood indeed." -- New Scientist "Larry Gostin has put together the definitive collection of essays on one of the most perplexing and titillating topics in contemporary medical ethics. This book includes contributions from some of the leading scholars on the legal, ethical, and social aspects of surrogacy, as well as several critical perspectives on the famous Baby M case -- must reading for understanding the surrogate motherhood controversy." -- Robert M. Veatch "Highly recommended... " -- Choice "... a valuable resource for those concerned with an exceedingly difficult ethical, legal, and political problem."Â -- Ethics "There is a wealth of information here on the current 'status questionis' in the United States, and anyone involved in the surrogacy debate, in the U.S. or otherwise, will find working through this material very worthwhile." -- Canadian Philosophical Review "... an excellent sample of some of the best and most varied thinking so far on the numerous conceptual, moral, social, and policy questions raised by contract motherhood." -- The Journal of Clinical Ethics

Martha Field examines the myriad legal complexities that today enmesh surrogate motherhood, and also looks beyond existing legal rules to ask what society wants from surrogacy.

This study addresses the two most controversial issues in surrogate motherhood: the commercial aspect of the practice and the issue of parental rights. After setting the legal and moral backdrop of procreative liberty in general, Rae argues that commercial surrogacy is the moral equivalent of baby-selling and should be prohibited. Add to this the potential for exploitation of the surrogate in practices that are already in motion and it is not hard to see the potential for harm to the parties involved. The book concludes with a survey of state and international law to date on surrogacy and a sample legislative proposal that could be adopted by states that are currently deliberating the issues. The commercial aspect of surrogacy makes it a potentially profitable business, not only for the surrogates but also for the brokers who facilitate the arrangements. This book promotes careful forethought, a reconsideration of definitions of parenthood, and a thorough examination of cases past and pending.